Regulatory Notice 21-03 Fraud Prevention February 10, 2021 FINRA Urges Firms to Review Their Policies and Notice Type Procedures Relating to Red Flags of Potential Securities 0 Special Alert Fraud Involving Low-Priced Securities Suggested Routing Summary 0 Anti-Money Laundering 0 Compliance Low-priced securities1 tend to be volatile and trade in low volumes. It may be difficult to find accurate information about them. There is a long history of 0 Financial Crimes bad actors exploiting these features to engage in fraudulent manipulations 0 Fraud of low-priced securities. Frequently, these actors take advantage of trends 0 Internal Audit and major events—such as the growth in cannabis-related businesses or the 0 Legal ongoing COVID-19 pandemic—to perpetrate the fraud.2 0 Operations FINRA has observed potential misrepresentations about low-priced securities 0 Risk issuers’ involvement with COVID-19 related products or services, such as 0 Senior Management vaccines, test kits, personal protective equipment and hand sanitizers. These misrepresentations appear to have been part of potential pump-and-dump Key Topics or market manipulation schemes that target unsuspecting investors.3 These 0 COVID-19-related manipulations are the most recent manifestation of this Anti-Money Laundering type of fraud. 0 Fraud 0 Low-Priced Securities This Notice provides information that may help FINRA member firms 0 Trading that engage in low-priced securities business assess and, as appropriate, strengthen their controls to identify and mitigate their risk, and the risk to their customers, including specified adults and seniors,4 of becoming involved Referenced Rules & Notices in activities related to fraud involving low-priced securities. Firms that engage 0 Bank Secrecy Act in low-priced securities business should also be aware of a recent SEC Staff 0 FINRA Rule 2010 Bulletin—Risks Associated with Omnibus Accounts Transacting in Low-Priced 0 FINRA Rule 2020 Securities—that highlights for broker-dealers various risks arising from 0 FINRA Rule 2165 illicit activities associated with transactions in low-priced securities through 0 omnibus accounts, particularly transactions effected on behalf of omnibus FINRA Rule 3310 accounts maintained for foreign financial institutions.5 0 FINRA Rule 6432 0 Regulatory Notice 09-05 This Notice does not create any new requirements or expectations for 0 Regulatory Notice 19-18 member firms outside of their existing obligations pursuant to FINRA rules 0 and applicable law, nor does implementing any of the practices cited here Regulatory Notice 20-13 create a safe harbor from these obligations. 0 Securities Act of 1933 0 Securities Exchange Act of 1934 1 21-03 February 10, 2021 Questions regarding this Notice should be directed to: 0 Greg Ruppert, Executive Vice President, National Cause and Financial Crimes Detection Programs, Member Supervision, at (415) 217-1120 or [email protected]; 0 Sam Draddy, Senior Vice President, Insider Trading, Fraud Surveillance and PIPEs Surveillance, Member Supervision, at (240) 386-5042 or [email protected]; or 0 Blake Snyder, Senior Director, Financial Intelligence Unit, Member Supervision, at (561) 443-8051 or [email protected]. Background and Discussion Broker-dealers play an important part in identifying and protecting investors from potentially fraudulent activity. A firm’s failure to take appropriate steps as a gatekeeper to the public securities markets—for example, by not conducting a reasonable inquiry into a security’s eligibility for distribution, where required—may expose that firm to liability risks, for example under Section 5 of the Securities Act of 1933 (“Securities Act”).6 In addition, Section 10(b) of the Exchange Act, Rule 10b-5 thereunder, and Section 17(a) of the Securities Act, as well as FINRA Rules 2010 (Standards of Commercial Honor and Principles of Trade), 2020 (Use of Manipulative, Deceptive or Other Fraudulent Devices) and 3110 (Supervision) establish obligations for member firms in connection with potential fraud. Firms also have obligations under the BSA and FINRA Rule 3310 (Anti-Money Laundering Compliance Program) to maintain appropriate risk-based procedures to conduct ongoing customer diligence and to report suspicious activity to the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury. This Notice provides information to help firms strengthen their controls in four important areas related to potential fraud involving low-priced securities and thereby protect investors from financial harm and the firms themselves from financial, regulatory and reputational damage: 0 Detection: the Notice describes possible red flags of potentially fraudulent low-priced securities activity; 0 Monitoring: the Notice describes selected effective supervisory and other control practices FINRA has observed firms implement; 0 Suspicious Activity Report (SAR) filing: the Notice describes firms’ SARs filing obligations; and 0 Fraud Reporting: the Notice describes additional avenues for firms to report potential fraud involving low-priced securities. FINRA notes that a pattern of involvement in low-priced securities transactions—including soliciting customers, conducting offerings or executing transactions related to low-priced securities—informs FINRA’s evaluation of a firm’s risk profile. FINRA may examine or otherwise review more frequently the activity of firms that display these elevated risk characteristics. 2 Regulatory Notice February 10, 2021 21-03 Detection: Potential Red Flags of Fraud Involving Low-Priced Securities The red flags discussed below are intended to help inform firms about activity associated with potential fraud involving low-priced securities, including, but not limited to, schemes involving COVID-19 claims.7 The red flags discussed in this Notice may overlap in some instances with red flags of suspicious anti-money laundering activity FINRA identified in Regulatory Notice 19-18 (FINRA Provides Guidance to Firms Regarding Suspicious Activity Monitoring and Reporting Obligations). This Notice provides firms engaged in low-priced securities business with more detailed information regarding red flags that are specific to potential fraud involving low-priced securities. Potential Indicators of Fraud Involving Low-Priced Securities FINRA has observed that the following non-exhaustive list of issuer, third-party or customer activities may be red flags of fraud involving low-priced securities: 0 Issuers 0 abrupt or frequent changes of issuer name, ticker symbol or business model, or abrupt expansion of an existing business model, often to benefit from the latest trend such as COVID-19 cures, test kits or prevention-related products (including instances in which the issuer has previously engaged in a business involved with other trends such as e-cigarettes, cannabis or cryptocurrency); 0 currently or previously a shell company;8 0 engaging in recapitalization or reorganization activities (e.g., a reverse or forward stock split in conjunction with a reverse merger) that appear to concentrate the shares into the hands of a small number of shareholders, who may be acting in coordination; 0 hiring executive or control persons or service providers—such as attorneys, auditors, transfer agents, consultants and promoters—who have a history of regulatory or criminal violations, or are associated with multiple low-priced stock issuers; 0 not providing current and adequate publicly available financial information9 in SEC filings or voluntary disclosures on an inter-dealer quotation system; 0 making claims about projected scale and revenue targets that are not supported by the issuer’s experience, assets or financial condition (e.g., an issuer that develops cannabinoid-based products announces that it could earn millions in revenue from manufacturing and shipping COVID-19 home test kits); 0 making unsupported claims regarding partnerships, joint ventures or financing agreements with private entities (e.g., an issuer promotes a press release touting the financial benefits of a new business partnership with a company whose financial condition cannot be independently verified); Regulatory Notice 3 21-03 February 10, 2021 0 conducting increased social media, press release or related investor outreach campaigns after a period of apparent dormancy, particularly if the information is not confirmed on the issuer’s website or in financial statements and disclosures filed with the SEC or on an inter-dealer quotation system, and often related to the latest trend; or 0 lacking verifiable evidence of the issuer’s business activities, such as limited or no operational website, social media accounts, references to issuer on employment websites or other independent reporting on the issuer’s business activities. 0 Third-Party Promotional Activities 0 hyping and promoting issuers (or their products or services), especially where the information cannot be reliably confirmed; 0 promotional investor email alerts, banner advertisements, dedicated promotional websites or seemingly independent news or research coverage, which prominently feature or advertise the issuer’s new potential business prospects that (1) may be related to the latest trend (e.g., winning a large contract or developing a new product or service), (2) may also present recent or projected investment returns, and (3) cannot be reliably confirmed; 0 generating a spike in social media promotions (e.g., on Twitter, Instagram or Facebook), and activity on investor chat